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State v. Mckimmie6/7/1988
the owner and: (1) has the purpose of depriving the owner of the property. [Emphasis added.]"
The State proved each element of theft. First, McKimmie admitted that he removed the rifle and ammunition from Ameline's apartment. He did so without Ameline's knowledge or consent. McKimmie then fired and expended two shells. McKimmie's actions thus constitute a knowing exertion of unauthorized control.
Second, McKimmie's conduct deprived Ameline of his rifle. "Deprive" means to withhold property of another and "dispose of the property and use or deal with the property so as to make it unlikely that the owner will recover it." Section 45-2-101(19) (d), MCA. After he shot his wife, McKimmie took Ameline's rifle and fled from the scene. McKimmie testified that he stopped his car on Interstate 15 near Gore Hill. He stated: "I grabbed the rifle and tossed it over the roof of the car." Such abandonment plainly deprived Ameline the use of his property. Only by chance, the rifle was recovered ten days later. We hold that the physical evidence and McKimmie's own admissions fully support his conviction for theft.
c. Tampering
The Mauser rifle and the victim's purse were found by highway workers on June 16, 1987. The purse had identification in it showing that it belonged to Valarie. Ameline identified the rifle as his. The rifle had already begun to rust.
Tampering is defined in Section 45-7-207(1), MCA:
"A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, he: (a) alters, destroys, conceals or removes any record, document, or thing with purpose to impair its verity or availability in such proceeding or investigation. [Emphasis added.]"
On the witness stand, McKimmie admitted that he discarded the rifle and purse in the ditch. However, McKimmie contends that he was too distraught to have formed the requisite mental state or belief that an official investigation was pending.
The District Court reviewed the evidence, observed McKimmie's testimony and assessed his veracity. A trier of fact may infer the requisite mental state from a defendant's conduct and statements. State v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851. McKimmie removed and concealed the evidence. He not only impaired its availability, but also caused its condition to change. Viewed in a light most favorable to the State, the evidence was reasonably interpreted and adequately supports McKimmie's conviction of tampering with evidence.
We affirm the four convictions.
MR. JUSTICES SHEEHY, HARRISON, GULBRANDSON and McDONOUGH concur.
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